Author Topic: Form 34A or 34B, Which is Final?  (Read 59635 times)

Offline vooke

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Form 34A or 34B, Which is Final?
« on: September 15, 2017, 07:27:47 PM »
This looks like some trivial question but I believe it has far reaching consequences in the role of the chairperson of IEBC in declaring the final results.

Here's why,
Before Kiai Case (CIVIL APPEAL NO. 105 OF 2017), all presidential results declared at all levels(polling station Constituency and county) were provisional in that they was subject to the chairman's 'confirmation'. They could be altered even after being declared

But the Court of Appeal upheld the High Court's decision that polling station results were final and not subject to ANYTHING other than tallying at the other levels. Look

Page 39
Quote
To suggest that there is some law that empowers the chairperson of the appellant, as an individual to alone correct, vary, confirm, alter, modify or adjust the results electronically transmitted to the national tallying centre from the constituency tallying centres, is to donate an illegitimate power. Such a suggestion would introduce opaqueness and arbitrariness to the electoral process - the very mischief the Constitution seeks to remedy. We reiterate the words of the learned Judges of the Supreme Court in George Mike Wanjohi (supra) that;



The same judgement towards the end reads;

Quote
]The lowest voting unit and the first level of declaration of presidential election results is the polling station. The declaration form containing those results is a primary document and all other forms subsequent to it are only tallies of the original and final results recorded at the polling station.

So form 34A is the primary document while all other documents (34B,34C) are mere tallies,right?
Since the chairperson of IEBC can't correct, vary, confirm, alter, modify or adjust the results electronically transmitted to the national tallying centre from the constituency tallying centres, what happens when he receives a form 34B with gaping errors like arithmetical error?

Can he reject tthem yet they had already been declared?

One brilliant mind told me he should reject them and ask the Constituency returning officer to correct it. But isn't this correcting or confirming the already declared results? And if he rejects and refers back publicized results,were the original results final?


The judgement further tells us the the only confirmation the chairperson should do is that of ballots issued,ballots used,whether the winner met the constitutional threshold and so forth.


My view is the judgement is contradictory.
You can't declare as final BOTH primary document and subsequent tallies produced from it,and this not subject to correcting,varying,confirmation,alteration,modification or adjustment.

My reasoning is simple
There exists a risk that errors may be injected into the tallying document, meaning you declare two contradictory values or figures as final.

More importantly,there is no way of dealing with these other than for the chairperson to correct, vary, confirm, alter, modify or adjust the results electronically transmitted to the national tallying centre from the constituency tallying centres to resolve the contradiction, yet the same judgement tells us that only a court of law can resolve such.


The judgement;
https://drive.google.com/open?id=0B2rMMQJiqMB8Uy1VWEVSYnA5WHc
2 Timothy 2:4  No man that warreth entangleth himself with the affairs of this life; that he may please him who hath chosen him to be a soldier.

Offline vooke

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Re: Form 34A or 34B, Which is Final?
« Reply #1 on: September 15, 2017, 07:36:06 PM »
My suggestion is ,either you give the chairperson some latitude in altering forms 34B,or do away with Constituency declarations,and settle for polling stations with National tallying center doing everything.

If the chairperson has some role in verification of 34B,then he has a duty to withhold declaration till he receives every form 34A used in preparing form 34B. If he has no role whatsoever, he can rightfully assume that the received form 34B was correctly prepared from forms 34A which he need not sight before declaring.

I think Chebukati used this latter argument but NASWA was not convinced,and they went to SCOK and won. I'm not sure if this was a factor in their favor but I certainly wish SCOK pronounces itself in this
2 Timothy 2:4  No man that warreth entangleth himself with the affairs of this life; that he may please him who hath chosen him to be a soldier.

Offline vooke

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Re: Form 34A or 34B, Which is Final?
« Reply #2 on: September 20, 2017, 11:40:05 AM »
I think Mwilu will touch on this
2 Timothy 2:4  No man that warreth entangleth himself with the affairs of this life; that he may please him who hath chosen him to be a soldier.

Offline vooke

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Re: Form 34A or 34B, Which is Final?
« Reply #3 on: September 20, 2017, 11:49:45 AM »
Mwilu- NTC ought to have received all forms 34A before declaring the results
2 Timothy 2:4  No man that warreth entangleth himself with the affairs of this life; that he may please him who hath chosen him to be a soldier.

Offline Kim Jong-Un's Pajama Pants

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Re: Form 34A or 34B, Which is Final?
« Reply #4 on: September 20, 2017, 03:05:29 PM »
Polling station is final.  That is the motivation of the law.

34A is scanned and relayed to CTC and NTC.  2 locations(Lets ignore implementation details of IT). 3 if you count the portal.

CTC uses 34A to generate 34B.  NTC relies on 34B to generate 34C.  NTC then declares the final result from 34C.

If NTC sees anomalies between 34B and 34A, they can make a public note of that while making the declaration.  Especially if the anomalies can impact the result.  But they cannot change it.  This can be used in a petition that IEBC itself can support if they so choose.

The question is why send scans to 2 locations, when only one can do?  It seems to me to be an extra check.  Almost a system of checks and balances between CTC and NTC.  The more people you share the info with, the more robust the checks.  Hence the portal.

Now if CTC gets it wrong, it could be that they have different 34As, they suck at arithmetic, or they were hoping not to be caught.  Whatever it is, NTC is free to make note of it at the declaration.


"I freed a thousand slaves.  I could have freed a thousand more if only they knew they were slaves."

Harriet Tubman

Offline vooke

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Re: Form 34A or 34B, Which is Final?
« Reply #5 on: September 20, 2017, 04:56:16 PM »
Polling station is final.  That is the motivation of the law.

34A is scanned and relayed to CTC and NTC.  2 locations(Lets ignore implementation details of IT). 3 if you count the portal.

CTC uses 34A to generate 34B.  NTC relies on 34B to generate 34C.  NTC then declares the final result from 34C.

If NTC sees anomalies between 34B and 34A, they can make a public note of that while making the declaration.  Especially if the anomalies can impact the result.  But they cannot change it.  This can be used in a petition that IEBC itself can support if they so choose.

The question is why send scans to 2 locations, when only one can do?  It seems to me to be an extra check.  Almost a system of checks and balances between CTC and NTC.  The more people you share the info with, the more robust the checks.  Hence the portal.

Now if CTC gets it wrong, it could be that they have different 34As, they suck at arithmetic, or they were hoping not to be caught.  Whatever it is, NTC is free to make note of it at the declaration.



2 Timothy 2:4  No man that warreth entangleth himself with the affairs of this life; that he may please him who hath chosen him to be a soldier.

Offline Kadame7

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Re: Form 34A or 34B, Which is Final?
« Reply #6 on: September 20, 2017, 04:59:28 PM »
vooke, Mwilu says it was part of verification: meant to ensure identical results throughout transmissions. Its meant to catch manipulators.

Offline vooke

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Re: Form 34A or 34B, Which is Final?
« Reply #7 on: September 20, 2017, 05:01:38 PM »
vooke, Mwilu says it was part of verification: meant to ensure identical results throughout transmissions. Its meant to catch manipulators.
2 Timothy 2:4  No man that warreth entangleth himself with the affairs of this life; that he may please him who hath chosen him to be a soldier.

Offline Kim Jong-Un's Pajama Pants

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Re: Form 34A or 34B, Which is Final?
« Reply #8 on: September 20, 2017, 05:04:55 PM »
Polling station is final.  That is the motivation of the law.

34A is scanned and relayed to CTC and NTC.  2 locations(Lets ignore implementation details of IT). 3 if you count the portal.

CTC uses 34A to generate 34B.  NTC relies on 34B to generate 34C.  NTC then declares the final result from 34C.

If NTC sees anomalies between 34B and 34A, they can make a public note of that while making the declaration.  Especially if the anomalies can impact the result.  But they cannot change it.  This can be used in a petition that IEBC itself can support if they so choose.

The question is why send scans to 2 locations, when only one can do?  It seems to me to be an extra check.  Almost a system of checks and balances between CTC and NTC.  The more people you share the info with, the more robust the checks.  Hence the portal.

Now if CTC gets it wrong, it could be that they have different 34As, they suck at arithmetic, or they were hoping not to be caught.  Whatever it is, NTC is free to make note of it at the declaration.




Right except on one thing. 34B are final as well only to be challenged in court. This was the basis of the Kiai case.

No.  34A are final.  The 34C is derived from the 34B which are derived from 34A.  Of course some information could be lost or altered in the process.  If it is considered important enough, 34A will be the final arbiter.  The other 34s are merely attempting to convey 34A. 


The chairman does not have to make that note.  But if he sees things he disagrees with from his own 34A tallying, that notice can be useful for whoever may feel aggrieved to challenge in court.

The multiple locations is a redundancy that makes it easier to catch manipulators as Kadame states.  It serves more or less the same purpose as sharing the scans on the portal with the whole world.
"I freed a thousand slaves.  I could have freed a thousand more if only they knew they were slaves."

Harriet Tubman

Offline Kim Jong-Un's Pajama Pants

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Re: Form 34A or 34B, Which is Final?
« Reply #9 on: September 20, 2017, 05:08:03 PM »

I am just quoting Philomena Mwilu.  She is part of the majority.
"I freed a thousand slaves.  I could have freed a thousand more if only they knew they were slaves."

Harriet Tubman

Offline vooke

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Re: Form 34A or 34B, Which is Final?
« Reply #10 on: September 20, 2017, 05:10:13 PM »
Termie,
If the note is not necessary since it can only be challenged in court, why is it part of his responsibility to receive all these before declaration seeing the declaration is not in any way affected by the forms 34As?
2 Timothy 2:4  No man that warreth entangleth himself with the affairs of this life; that he may please him who hath chosen him to be a soldier.

Offline vooke

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Re: Form 34A or 34B, Which is Final?
« Reply #11 on: September 20, 2017, 05:13:03 PM »
2 Timothy 2:4  No man that warreth entangleth himself with the affairs of this life; that he may please him who hath chosen him to be a soldier.

Offline Kadame7

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Re: Form 34A or 34B, Which is Final?
« Reply #12 on: September 20, 2017, 05:13:28 PM »
vooke, Mwilu says it was part of verification: meant to ensure identical results throughout transmissions. Its meant to catch manipulators.
He says he cant ammend. Not that he cant verify. Those laws were enacted to discourage any change/manipulation of forms at any stage of transmission.

Offline Kim Jong-Un's Pajama Pants

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Re: Form 34A or 34B, Which is Final?
« Reply #13 on: September 20, 2017, 05:16:16 PM »
Termie,
If the note is not necessary since it can only be challenged in court, why is it part of his responsibility to receive all these before declaration seeing the declaration is not in any way affected by the forms 34As?

For the same reason, we as Kenyans need to be able to access them on the portal.  It's a redundancy.  A redundancy that makes it just that little bit harder for someone to cheat.
"I freed a thousand slaves.  I could have freed a thousand more if only they knew they were slaves."

Harriet Tubman

Offline vooke

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Re: Form 34A or 34B, Which is Final?
« Reply #14 on: September 20, 2017, 05:17:46 PM »
vooke, Mwilu says it was part of verification: meant to ensure identical results throughout transmissions. Its meant to catch manipulators.
He says he cant ammend. Not that he cant verify. Those laws were enacted to discourage any change/manipulation of forms at any stage of transmission.
2 Timothy 2:4  No man that warreth entangleth himself with the affairs of this life; that he may please him who hath chosen him to be a soldier.

Offline RV Pundit

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Re: Form 34A or 34B, Which is Final?
« Reply #15 on: September 20, 2017, 05:19:42 PM »
After verification what happens - if you discover the forms have issues here and there - what does Chebukati do? Ask the RO to varify or alter?  If he declares a whole constitutuency election invalid because the form has issues - what is implication on that ? Isn't that court business.

Offline vooke

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Re: Form 34A or 34B, Which is Final?
« Reply #16 on: September 20, 2017, 05:21:25 PM »
Termie,
If the note is not necessary since it can only be challenged in court, why is it part of his responsibility to receive all these before declaration seeing the declaration is not in any way affected by the forms 34As?

For the same reason, we as Kenyans need to be able to access them on the portal.  It's a redundancy.  A redundancy that makes it just that little bit harder for someone to cheat.
2 Timothy 2:4  No man that warreth entangleth himself with the affairs of this life; that he may please him who hath chosen him to be a soldier.

Offline Kadame7

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Re: Form 34A or 34B, Which is Final?
« Reply #17 on: September 20, 2017, 05:21:57 PM »
vooke, Mwilu says it was part of verification: meant to ensure identical results throughout transmissions. Its meant to catch manipulators.
He says he cant ammend. Not that he cant verify. Those laws were enacted to discourage any change/manipulation of forms at any stage of transmission.
He has the DUTY to verify. The point if these laws was to ensure any manipulation at any stage, polling to constituency to NTC, would be known. It was meant to discourage any temptations to change the forms. Mwilu said today it is meant to ensure that it is the exact same form that was transmitted at the polling that ends up at the NTC. Its alk designed with our election history in mind.

Offline vooke

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Re: Form 34A or 34B, Which is Final?
« Reply #18 on: September 20, 2017, 05:24:36 PM »
vooke, Mwilu says it was part of verification: meant to ensure identical results throughout transmissions. Its meant to catch manipulators.
He says he cant ammend. Not that he cant verify. Those laws were enacted to discourage any change/manipulation of forms at any stage of transmission.
He has the DUTY to verify. The point if these laws was to ensure any manipulation at any stage, polling to constituency to NTC, would be known. It was meant to discourage any temptations to change the forms. Mwilu said today it is meant to ensure that it is the exact same form that was transmitted at the polling that ends up at the NTC. Its alk designed with our election history in mind.
2 Timothy 2:4  No man that warreth entangleth himself with the affairs of this life; that he may please him who hath chosen him to be a soldier.

Offline vooke

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Re: Form 34A or 34B, Which is Final?
« Reply #19 on: September 20, 2017, 05:27:50 PM »
After verification what happens - if you discover the forms have issues here and there - what does Chebukati do? Ask the RO to varify or alter?  If he declares a whole constitutuency election invalid because the form has issues - what is implication on that ? Isn't that court business.
2 Timothy 2:4  No man that warreth entangleth himself with the affairs of this life; that he may please him who hath chosen him to be a soldier.